Minutes December 8, 2020 MINUTES OF THE OPEN SESSION OF THE RHODE ISLAND ETHICS COMMISSION December 8, 2020 The Rhode Island Ethics Commission remotely conducted its 13th meeting of 2020 in Zoom webinar format at 9:00 a.m. on Tuesday, December 8, 2020, pursuant to the notice published at the Commission offices, 40 Fountain Street, Providence, Rhode Island, and electronically with the Rhode Island Secretary of State.[1] The following Commissioners were present: Marisa A. Quinn, Chair J. Douglas Bennett Arianne Corrente, Vice Chair Timothy Murphy Kyle P. Palumbo, Secretary* Emili B. Vaziri** M. Therese Antone The following Commissioner was not present: Robert A. Salk. Also present were Herbert F. DeSimone, Jr., Commission Legal Counsel; Jason Gramitt, Commission Executive Director; Katherine D’Arezzo, Senior Staff Attorney; Lynne Radiches, Staff Attorney/Education Coordinator; Staff Attorneys Teresa Giusti and Teodora Popova Papa; and Commission Investigators Steven T. Cross; Peter J. Mancini; and Gary V. Petrarca. At 9:05 a.m., the Chairopened the meeting. The first order of business was: Discussion of Remote Meeting Format; Identifying and Troubleshooting any Remote Meeting Issues. Executive Director Gramitt stated that the Commission has been operating pursuant to the Governor’s executive orders relating to remote meetings. He explained that copies of advisory opinions will be available on the Commission’s website by clicking the “Meeting Materials” link. After Open Session adjourns, everyone will leave the meeting and the Commission will convene in Executive Session in a separate webinar meeting, after which the Commission will return to Open Session to provide a live report on all actions taken in Executive Session. *Commissioner Palumbo joined the meeting at 9:06 a.m. Executive Director Gramitt informed that a written report of all actions taken in Executive Session will be published and available on the Commission’s website after the meeting ends. Copies of the written report can be also requested by calling the Commission at (401) 222-3790 or emailing ethics.email@ethics.ri.gov. The next order of business was: Approval of minutes of the Open Session held on October 27, 2020. Upon motion made by Commissioner Bennett and duly seconded by Commissioner Corrente, it was VOTED: To approve the minutes of the Open Session held on October 27, 2020. AYES: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; and Kyle P. Palumbo. ABSTENTION: Timothy Murphy. The next order of business was: Director’s Report: Status report and updates. a.) Discussion of impact of COVID-19 crisis on Ethics Commission operations and staffing Executive Director Gramitt explained that the temporary changes in office operations and procedures in response to COVID-19 remain in place and most of the office’s operations are being handled electronically. He informed that most staff members are working remotely with a limited number in the office at a given time. b.) Complaints and investigations pending There are five complaints pending, including the two new ones noticed on today’s meeting agenda for initial determination. c.) Advisory opinions pending There are 14 advisory opinions pending, with seven noticed on today’s meeting agenda. d.) Access to Public Records Act requests since last meeting There were six APRA requests received since the last meeting, all of which were granted within one business day. Executive Director Gramitt informed that the number of requests is down largely due to the online accessibility of most of the requested information. e.) Financial Disclosure, update on 2019 and 2020 filing years The 2019 financial disclosure filing year has concluded. Executive Director Gramitt stated that the 2020 filing year will soon be underway. The staff is currently interacting with municipal clerks and state agencies to obtain accurate lists of public officials who will be required to file. The online filing system will be accessible for 2020 filers on January 1, 2021, although financial disclosure forms will not be mailed until March. Chair Quinn commended Executive Director Gramitt and his team for their hard and seamless work with no interruptions in business or challenges to ongoing government operations. Commissioner Bennett echoed Chair Quinn’s comments. Executive Director Gramitt thanked the Commission for their regular attendance at Commission meetings which has helped the staff to efficiently carry out their work. The next order of business was that of: Advisory Opinions. The advisory opinions were based on draft advisory opinions prepared by Commission Staff for review by the Commission and were scheduled as items on the Open Session Agenda for this date. The first advisory opinionwas that of: Jacob Brier, a member of the Barrington Town Council, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in discussions and voting relative to a complaint filed by a Barrington resident against the President and the former Vice President of the Barrington Town Council, given that the Petitioner had served as a fellow director of a non-profit organization with two of the witnesses who co-signed said complaint. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner and Amy Goins, Assistant Solicitor for the Town of Barrington, were present via video links. Commissioner Palumbo queried whether prior advisory opinions have been issued to petitioners who resigned from a private entity in order to carry out their public duties or obligations. Legal Counsel DeSimone referenced a prior matter in which an attorney who was newly appointed to a board, upon learning that his new client frequently appeared before that board, terminated the attorney client relationship in order to avoid a conflict of interest. Executive Director Gramitt stated that one key factor in such situations is whether it is anticipated that, following completion of the official action, the terminated business associate relationship will likely resume or be re-established. In response to Commissioner Palumbo, the Petitioner stated that he was originally asked to serve as treasurer of the organization along with two other directors, but since his resignation, they are now looking for a replacement treasurer. **Commissioner Vaziri joined the meeting at 9:20 a.m. The Petitioner further stated that he will continue to assist the organization in a voluntary, ad-hoc capacity by recruiting attendees to various events and will not attend directors’ meetings or act in a director capacity. Upon motion made by Commissioner Corrente and duly seconded by Commissioner Bennett, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Jacob Brier, a member of the Barrington Town Council. The next advisory opinion was that of: Mark Vieira, the Deputy Chief of the Johnston Police Department, requests an advisory opinion regarding whether the established alternate supervisory chain of command is sufficient to insulate him from conflicts of interest arising out of his new position, given that his spouse is the Administrative and Payroll Clerk for the Johnston Police Department. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner and Johnston Police Chief Joseph Razza were present via video links. Commissioner Bennett cautioned the Petitioner to be vigilant to recognize issues that may arise, and Commissioner Antone echoed Commissioner Bennett’s comments. Commissioner Palumbo noted a typographical correction on the first page. Upon motion made by Commissioner Antone and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, as corrected and attached hereto, to Mark Vieira, the Deputy Chief of the Johnston Police Department. The next advisory opinion was that of: Benoit Gauthier, a member of the Town of Little Compton Budget Committee, who is also a member of the Town of Little Compton Harbor Commission, a municipal appointed position, requests an advisory opinion regarding whether the Code of Ethics prohibits him from simultaneously serving in both positions. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was present via video link. In response to Chair Quinn, the Petitioner explained that the Harbor Commission operates from a Harbor Management Fund which is largely a collection of harbor and mooring fees paid to the Town. He stated that, each year, the Harbor Commission formally requests that the Town Council transfer funds into the Harbor Management Fund to cover the Harbor Commission’s operating costs, including the salary of the Harbor Master. In response to Chair Quinn, Staff Attorney Popova Papa stated that the Petitioner is not a business associate of either public body and can participate in voting on budgetary matters provided there is no financial impact to himself, a family member, or a business associate as set forth in the draft opinion. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Benoit Gauthier, a member of the Town of Little Compton Budget Committee, who is also a member of the Town of Little Compton Harbor Commission, a municipal appointed position. The next advisory opinion was that of: Richard Keene, a member of the North Smithfield Planning Board, who in his private capacity is the President and a Director of the North Smithfield Heritage Association, a non-profit organization, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in the Planning Board’s discussions and vote concerning an application filed by a member of the North Smithfield Heritage Association Board of Directors. Staff Attorney Popova Papa presented the Commission Staff recommendation. The Petitioner was not present. Staff Attorney Popova Papa informed that the Petitioner was aware of the draft opinion and its recommendation. She further informed that the draft addresses one question that the Petitioner raised but that he withdrew his other question and submitted two new advisory opinion requests. In response to Commissioner Bennett, Staff Attorney Popova Papa stated that the other member of the North Smithfield Heritage Association Board is the applicant for the proposed development. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard Keene, a member of the North Smithfield Planning Board, who in his private capacity is the President and a Director of the North Smithfield Heritage Association, a non-profit organization. The next advisory opinion was that of: Richard Constantine, a member of the Westerly Planning Board, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from participating in discussions and voting concerning whether to include a public right of way to the Town of Westerly’s Weekapaug Fire District Beach in the Town’s new Comprehensive Long Range Plan, given that the Petitioner is a resident of the Weekapaug Fire District. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via audio link. Staff Attorney Radiches informed that since the drafting of the opinion, the Planning Board met on the subject matter and the Petitioner recused. She stated that the matter is now before the Town Council. In response to Chair Quinn, Staff Attorney Radiches stated that the class exception would not apply here because the financial impact on each propertywould not be the same. In response to Commissioner Palumbo, Staff Attorney Radiches explained that, while the ultimate decision on the matter rests with the Town Council, the Planning Board’s deliberations and recommendation to the Town Council are given a great deal of weight and are the equivalent of pre-decision discussions by the Town Council as set forth in footnote two of the draft. Legal Counsel DeSimone noted that the Town Council requested the Planning Board’s recommendation. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Antone, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Richard Constantine, a member of the Westerly Planning Board. The next advisory opinion was that of: Joseph M. Montesano, a member of the Westerly Planning Board, requests an advisory opinion regarding whether he is prohibited by the Code of Ethics from representing himself before the Westerly Zoning Board in connection with the remodel and expansion of his primary residence. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. Upon motion made by Commissioner Vaziri and duly seconded by Commissioner Corrente, it was unanimously VOTED: To issue an advisory opinion, attached hereto, to Joseph M. Montesano, a member of the Westerly Planning Board. The final advisory opinion was that of: David P. Tikoian, a member-elect of the Smithfield Town Council and, by extension, a member-elect of the Board of Water Commissioners for the Smithfield Water Supply Board, requests an advisory opinion regarding whether the Code of Ethics prohibits him from participating in Town Council and/or Board discussions and voting on matters involving his employer, Providence Water, a quasi-municipal agency. Staff Attorney Radiches presented the Commission Staff recommendation. The Petitioner was present via video link. The Petitioner informed that he was sworn in as a member of the Town Council on December 1, 2020. In response to Commissioner Bennett, the Petitioner stated that he could not imagine a scenario in which his public and private roles would intersect but sought an advisory opinion out of an abundance of caution. Commissioner Palumbo noted that the language used in Commission Regulation 1.2.1 does not distinguish between public and private employers. Executive Director Gramitt stated that he was involved with drafting said regulation, which used the term “employer” as shorthand for the “any business by which the person is employed” language used in section 5 in an effort to make it more understandable, and not as an expansion of the statutory prohibition. He further stated that, if strictly construed, the regulation is broader in its application. Commissioner Palumbo queried why a public official would not be required to recuse if his public employer appeared before him. Staff Attorney Radiches informed that Providence Water is a municipal agency and, therefore, is not an entity with which one can have a business association under the Code of Ethics. Chair Quinn inquired whether the fact that a financial benefit inures to a public employer should require the official to recuse. Executive Director Gramitt stated that the issue of whether a public official should recuse whenever his employer, public or private, appears before the official’s board is an interpretation and decision that the Commission can make today and, if it so decided, the draft opinion could be amended to reflect this interpretation. Commissioner Corrente expressed concern with changing how the Commission interprets and applies the regulation going forward and the chilling effect that this could have on public officials. Legal Counsel DeSimone stated that where legislation is not clear on its face, the courts look at the drafter’s intent. Commissioner Murphy stated that government agencies are not business associates under the Code of Ethics. Commissioner Palumbo argued that Regulation 1.2.1 is not facially ambiguous and, therefore, should be strictly interpreted. Chair Quinn commented that the Commission should not make any changes to its interpretation without further discussion and analysis. In response to Commissioner Bennett, Executive Director Gramitt stated that this matter can be noticed on a future agenda for general discussion before rulemaking. Upon motion made by Commissioner Murphy and duly seconded by Commissioner Vaziri, it was VOTED: To issue an advisory opinion, attached hereto, to David P. Tikoian, a member-elect of the Smithfield Town Council and, by extension, a member-elect of the Board of Water Commissioners for the Smithfield Water Supply Board. AYES: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; Timothy Murphy; and Emili B. Vaziri. NOES: Kyle P. Palumbo. Staff Attorney Radiches, after seeking instruction from the Commission, confirmed that she will remove “elect” from the advisory opinion to reflect that the Petitioner is now a member of the Smithfield Town Council. The next order of business was: New Business proposed for future Commission agendas and general comments from the Commission. Chair Quinn noted that the Commission will discuss Regulation 1.2.1 at a future meeting. At 10:15 a.m., upon motion made by Commissioner Murphy and duly seconded by Commissioner Corrente, it was unanimously VOTED: To go into Executive Session, to wit: a.) Motion to approve minutes of Executive Session held on October 27, 2020, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). b.) In re: James H. Brady, Jr., Complaint No. 2020-3, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). c.) In re: Suzanna Alba, Complaint No. 2020-5, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). d.) In re: Steven Merolla, Complaint No. 2020-6, pursuant to R.I. Gen. Laws § 42-46-5(a)(2) & (4). e.) Motion to return to Open Session. At 10:52 a.m., the Commission reconvened in Open Session. Commissioner Murphy was not present. The next order of business was: Report on actions taken in Executive Session. Chair Quinn reported that the Commission took the following actions in Executive Session, which information will also be available on the Commission’s website: 1. Voted (6-0) to approve the minutes of the Executive Session held on October 27, 2020. [Reporter’s Note: The vote was as follows: AYES: Marisa A. Quinn; M. Therese Antone; J. Douglas Bennett; Arianne Corrente; Kyle P. Palumbo; and Emili B. Vaziri. ABSTENTION: Timothy Murphy.] 2. Unanimously voted (7-0) in the matter of In re: James H. Brady, Jr., Complaint No. 2020-3, to enlarge time for investigation for 60 days. 3. Unanimously voted (7-0) in the matter of In re: Suzanna Alba, Complaint No. 2020-5, to initially determine that the Complaint states facts that, if true, are sufficient to constitute a violation of the Code of Ethics and authorized an investigation. Chair Quinn noted that an Initial Determination is a preliminary vote that should not be construed as an opinion regarding the truth of the facts alleged in the complaint but is merely a vote to conduct an investigation into the allegations raised. 4. Unanimously voted (7-0) in the matter of In re: Steven Merolla, Complaint No. 2020-6, to initially determine that the Complaint states facts that, if true, are sufficient to constitute a violation of the Code of Ethics and authorized an investigation. Chair Quinn noted that an Initial Determination is a preliminary vote that should not be construed as an opinion regarding the truth of the facts alleged in the complaint but is merely a vote to conduct an investigation into the allegations raised. 5. Unanimously voted (7-0) to return to Open Session. Motion to seal minutes of Executive Session held on December 8, 2020. Upon motion made by Commissioner Antone and duly seconded by Commissioner Bennett, it was unanimously VOTED: To seal the minutes of the Executive Session held on December 8, 2020. At 10:57 a.m., upon motion made by Commissioner Bennett and duly seconded by Commissioner Antone, it was unanimously VOTED: To adjourn the meeting. Respectfully submitted, _____________________________ Kyle P. Palumbo Secretary [1] On March 9, 2020, Governor Gina Raimondo declared a state of emergency due to the dangers to health and life posed by COVID-19. In furtherance thereof, the Governor issued Executive Order 20-46 on June 12, 2020, which, in part, relieved public bodies from the prohibitions regarding the use of telephonic or electronic communication to conduct meetings set forth under the Rhode Island Open Meetings Act. Pursuant to the issuance of Executive Order 20-93, on November 5, 2020, said relief was extended through December 8, 2020.